IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Calvin Ledbetter , : Petitioner :

: v. : No. 12 09 C .D. 2015

: Submitted: June 3 , 2016 Pennsylvania Board of Probation and : Parole , : Respondent :

BEFORE: HONORABLE RENÉE COHN JUBELIRER, Judge

HONORABLE MICHAEL H. WOJCIK, Judge HONORABLE ROCHELLE S. FRIEDMAN, Senior Judge

OPINION NOT REPORTED

MEMORANDUM OPINION BY JUDGE COHN JUBELIRER FILED: October 24, 2016
Calvin Ledbetter (Ledbetter) petitions for review of a July 13, 2015 Decision of the Pennsylvania Board of Probation and Parole (Board) that denied Ledbetter’s Administrative Appeal and affirmed its April 17, 2015 Order recommitting him as

a technical paro le violator (TPV) and convicted parole violator (CPV) and recalculating his maximum sentence date to September 8, 2018. Ledbetter is represented in this matter by court

- appointed counsel Harry J. Cancelmi, Jr., Esquire (Counsel). Presently before this Court for disposition is Counsel’s Application for Leave to Withdraw Appearance (Application to Withdraw), with2

an “ Anders Brief

” 1 attached, which is based on his conclusions that Ledbetter’s appeal lacks a basis in law or fact and is therefore without merit . For the reasons that follow, we deny Counsel’s Application to Withdraw. On January 31, 2006, Ledbetter was sentenced to serve 2 years, 6 months to 10 years in a State Correctional Institution (SCI) after pleading guilty to the

ma nufacture, sale, delivery, or possession with intent to d eliver a controlled substance. Ledbetter’s original minimum release date was May 26, 2008, and his maximum release date was November 26, 2015. (Sentence Status Summary, C.R. at 1.) The Board grant ed Ledbetter parole on January 29, 2008, and he was released on May 28, 2008. (C.R. at 8

- 9.) On January 7, 2010, Ledbetter was arrested for continued drug use and failure to respond to sanctions, and was transported to SCI

- Pittsburgh. (Supervision Histor y, C.R. at 37.) On February 23, 2010, the Board recommitted
Ledbetter to a SCI as a TPV for violation of condition #5A, use of drugs. (Board

1 In probation and parole cases where no constitutional right to counsel is involved, an attorney wishing to withdraw from representing a prisoner is permitted to file a no

- merit letter instead of a brief in accordance with Anders v. State of California , 386 U.S. 738 (1967). Seilhamer v. Pa . B d . of Prob. and Parole , 996 A.2d 40, 42 n. 4 (Pa. Cmwlth. 20 10). A constitutional right to counsel exists where a parolee presents:
[a] colorable claim (i) that he has not committed the alleged violation of the conditions upon which he is at liberty; or (ii) that, even if the violation is a matter of public recor d or is uncontested, there are substantial reasons which justified or mitigated the violation and make revocation inappropriate, and that the reasons are complex or otherwise difficult to develop or present.

Id. (quoting Hughes v. Pa. Bd. of Prob. and Par ole , 977 A.2d 19, 26 (Pa. Cmwlth. 2009)). Here, Ledbetter has no constitutional right to counsel, but does have a statutory right to counsel under Section 6(a)(10) of the Public Defender Act, Act of December 2, 1968, P.L. 1144, as amended , 16 P.S. § 9960. 6(a)(10). Therefore, Counsel could have filed a no

- merit letter instead of an Anders brief. We will thus treat Counsel’s Anders Brief as if it were filed as a no

- merit letter.3

Decision, mailed Feb. 24, 2010, C.R. at 10

- 11.) In its recommitment decision, the
Board indicated that Ledbetter would be reparoled to an approved plan upon successful completion of the parole violator therapeutic community program. ( Id. ) Ledbetter was reparoled and released on July 22, 2010. (C.R. at 14.) On July 30, 2010, Ledbetter was arrested by the Butler C ity Police after being observed selling
heroin to an individual. Ledbetter’s case was continued pending disposition of the outstanding charges. By decision mailed November 29, 2011, the Board
recommitted Ledbetter to serve 9 months backtime as a TPV for multiple technical parole violations. (C.R. at 17

- 18.) On Oct ober 12, 2012, the Board reparoled Ledbetter, and he was released to his mother’s home on November 20, 2012. ( Board Decision , C.R. at 21

. ) On April 12, 2014, Ledbetter was arrested by the Penn sylvania State Police
for driving under the influence of alcohol or controlled substance ( DUI )

- 1 st
offense , driving while operating privilege is suspended or revoked , and exceeding the maximum speed limit , and detained in Allegheny County Prison

. (Criminal Arrest and Disposition Report, C.R. at 28 ; Police Criminal Complaint, C.R. at 31

- 32 .) T he Board issued a warrant to commit and detain Ledbetter the same day

. (C.R. at 27.) At the prison, it was discovered that Ledbetter was concealing “two

e ig ht balls of cocaine, 47 stamp bags of heroin, and a small amount of marijuana” in his rectum, and additional charges were filed later. (C.R. at 28, 70.) Ledbetter posted bail the next day. (C.R. at 57.) Ledbetter was also found to have
committed techni cal parole violations of #5a, use of drugs, as a result of the new criminal charges. (Notice of Charges and Hearing, C.R. at 40.) On April 22, 2014, Ledbetter signed a Waiver of Violation Hearing and Counsel/Admission Form, and admitted to violating the terms and conditions of his parole. (C.R. at 42

- 43.)4

On May 12, 2014, the Board rendered a decision to detain Ledbetter pending disposition of the April 12, 2014 criminal charges, to recommit Ledbetter as a TPV to a SCI/Contracted County Jail for six mont hs , and to reparole Ledbetter upon successful completion of prescribed programs if no misconducts, but not later than six months. (Board Decision, C.R. at 54.) The Board Decision also indicated that Ledbetter would be reparoled automatically without furt her action of the Board upon completion of prescribed programs and subject to certain conditions. ( Id. at 55.) On January 12, 2015, Ledbetter pled guilty to possession with intent to deliver a controlled substance, DUI

- 1 st offense, and driving while opera ting privilege is suspended or revoked, and the other charges were withdrawn. (Criminal Arrest and Disposition Report, C.R. at 70.) In the Court of Common Pleas of Allegheny County, Ledbetter was sentenced to 1 to 2 years confinement in
SCI

- Greene plus 7 2 hours time served, 3 years of state

- supervised probation plus
an additional 6 months of county regular probation, also state

- supervised, to be
served concurrent with the 3 years of probation. (Order of Sentence, C.R. at 71

- 72.) 2 Ledbetter received 20 d ays credit for time served. (C.R. at 72.) The Board received official verification of Ledbetter’s conviction s on February 4, 2015. ( C.R. at 70.) Ledbetter signed a Waiver of Revocation Hearing and Counsel/Admission Form on February 11, 2015, and admitte d to pleading guilty to the new criminal charges. By Board Decision mailed on April 17, 2015, the Board modified its May

2 Ledbetter was also required to complete certain DUI

- related conditions, incl uding receive a drug and alcohol evaluation , receive a drug screening, and attend Safe Driving School. (C.R. at 72.)5

12, 2014 decision , by deleting the reparole provision, reaffirming its prior action to
recommit Ledbetter as a TPV to serve 6 months b acktime, and recommitting Ledbetter to a SCI to serve a total of 36 months backtime as a CPV. (Board Decision, Apr. 17, 2015, C.R. at 116.) The Board determined that Ledbetter had 1,101 days left on his original sentence. However, prior to his reparole, Ledbetter was at liberty on parole for 589 days, from May 28, 2008 to January 7, 2010, and 8 days, from July 22, 2010 to July 30, 2010, for a total of 597 days. The Board denied Ledbetter credit for this time at liberty on parole based on his new crimina l conviction. Ledbetter was given credit for 88 days, from November 3, 2008 to January 30, 2009, and 275 days, from April 12, 2014 to January 12, 2015, which left Ledbetter with 1,335 days of backtime remaining and yielded a new maximum date of September 8, 2018 , based on a return to custody date of January 12, 2015

. ( Order to Recommit, C.R. at 114.)
Ledbetter filed a timely Administrative Appeal and Petition for
Administrative Review , pro se, on May 2, 2015, challenging the recalculation of
his maximum s entence date , which caused him to serve more than the balance of his original unexpired sentence, and the Board’s imposition of “34 months”
backtime , in violation of 37 Pa. Code § § 75.1 and 75. 2 and Davenport v. Pennsylvania Board of Probation and Parole , 656 A.2d 581 (Pa. Cmwlth. 1995). (Administrative Appeal, C.R. at 118.) Ledbetter also alleged unspecified
constitutional violations and request ed that an attorney be appointed to represent
him. The Board denied Ledbetter’s Administrative Appeal and Petit ion for
Administrative Review and reaffirmed its prior decision , reasoning that it had the statutory authority to recalculate Ledbetter’s maximum sentence date to September6

8, 2018 , based on his recommitment as a CPV and indicating that he received no
cred it for all of the period s of time he spent at liberty on parole pursuant to Section 6138(a)(2) of the Prisons and Parole Code (Parole Code) , 61 Pa. C.S. § 6138(a)(2)

. (Board Decision, July 13, 2015, C.R. at 128 .) The Board also indicated that
Ledbetter d oes have the right to counsel, but that it could not appoint counsel for
him , and that Ledbetter’s due process rights were satisfied. On July 16, 2015,
Ledbetter filed a Petition for Review , pro se, with this Court seeking review of the Board’s July 13, 2015 Decision. 3 By Order dated July 29, 2015, this Court appointed the Public Defender of Greene County to represent Ledbetter. Counsel entered his appearance on behalf of Ledbetter on August 10, 20 15 . (Entry of Appearance, filed August 17, 2015.) Counsel subsequently filed the Application to Withdraw, along with his No

- Merit Letter , on March 21, 2016. This Court has held that in order to withdraw, appointed counsel must file a
“no

- merit” letter/ Tu rner letter, which must detail: “ ‘the nature and extent of [counsel’ s] review and list each issue the petitioner wished to have raised, with counsel’s explanation of why those issues are meritless.’” Zerby v. Shanon , 964 A.2d 956, 961 (Pa. Cmwlth. 2009) (quoting Commonwealth v. Turner , 544 A.2d 927, 928 (Pa. 1988)). “ [C]ounsel must fully comply with the procedures outlined
in Turner to ensure that each of the petitioner ’ s claims has been considered and that counsel has [] substantive reason[s] for conclu ding that those claims are meritless.” Hont v. Pa. Bd. of Prob. and Parole , 680 A.2d 47, 48 (Pa. Cmwlth. 1996) (citations omitted). Counsel is also required to “ notify the parolee of his

3 Our Court’s review in parole revocation cases “is limited to a determination of whether necessary findings are supported by substantial evidence, [whether] an error of law was committed, or whether constitutional rights of the parolee were violated.” Johnson v. Pa . B d

. of Prob

. and Parole , 706 A.2d 903, 904 (Pa. Cmwlth. 1998).7

request to withdraw, furnish the parolee with [] a copy of . . . [the] no

- merit letter satisfying the requirements of Turner , and inform the parolee of his right to retain
new counsel or submit a brief on his own behalf .” Reavis v. Pa. Bd. of Prob. and
Parole , 909 A.2d 28 , 33 (Pa. Cmwlth. 2006 ) (internal citations omitted)

. If these requirements are satisfied, t his Court must then “conduct its own independent review of the petition to withdraw and must concur in counsel’s assessm ent before [it] may grant counsel leave to withdraw.” Hont , 680 A.2d at 48 (citation omitted). Therefore, before considering the merits of Ledbetter’s appeal, we must first
evaluate Counsel’ s N o

- M erit L ett er and determine whether it complies with
Turner

. We begin by noting that Counsel has complied with the notice requirements
for no

- merit letters. Counsel served Ledbetter with a copy of the N o

- M erit L etter , his Ap plication to Withdraw , and this Court’s March 23, 2016 O rder , notifying
Ledbetter that he may either obtain substitute counsel or file a brief on his own
behalf. (Application to Withdraw at 2 , 4; No

- Merit Letter at 24; Certificate of Service, filed Apr. 13, 2016.) In his N o

- M erit L etter, Counsel sets forth the extensive facts and pro cedural history of Ledbetter’s case, thus, satisfying his obligation to thoroughly review the certified record in this matter. Zerby , 964
A.2d at 960. It appears, however, that Counsel did not address all of the issues
Ledbetter seeks to raise in his app eal. Turning to the substance of Counsel’s N o

- M erit L etter, Counsel identifies Ledbetter’s argument on appeal to this Court as:

Did the Board err in recommitting the offender to serve beyond the balance of his original unexpired term of November 26, 2015 computing his maximum date to September 8, 2018 in violation of 378

Pa. Code 75.1 and 2 and Davenport v. Pennsylvania Board of Pro bation and Parole , 656 A.2d 581 (Pa. Cmwlth. 1995)?

(No

- Merit Letter at 17.) In the Argument section of Counsel’s N o

- M erit L etter, Counsel identifies Ledbetter’s issue on appeal as “Was [the Board]’s decision in imposing a new maximum parole violation da te of March 4, 2023 [Counsel identifies March 4, 2023 as Ledbetter’s new maximum parole violation date, however, Ledbetter’s new maximum date is actually September 18, 2018], prohibited as an alteration of a judicially made sentence?” (No

- Merit Letter at 20.) Counsel also characterizes Ledbetter’s argument a third way as that

the Board did not have the authority to recalculate his maximum sentence date by removing his street time because, pursuant to Davenport . . . and McCauley v. Pennsylvania Board of Probation and Parole , 510 A.2d 877, 879 n.8 (Pa. Cmwlth. 1986), the Board “ does not have the power to alter a judicially

- imposed sentence. ”

( Id. ) Counsel analyzes this third issue as being without merit because the Board correctly recalculated Ledbetter’ s sentence by withdrawing credit for the time Ledbetter spent at liberty on parole, in accordance with Section 6138(a)(2) of the
Parole Code . ( Id. at 21.) Counsel cites to Davidson v. Pennsylvania Board of
Probation and Parole , 33 A. 3 d 682 (Pa. Cmwlth. 2 011) (rejecting a petitioner’s argument that application of Section 6138(a) of the Parole Code is a violation of the constitutional separation of powers doctrine ), as support for his contention that Ledbetter’s appeal is without merit . ( Id. at 20.) Counsel thereafter performed calculations to determine whether Ledbetter’ s new maximum date was correct, and concluding that it was , asserts that any challenge to that date i s “frivolous.” (No

Merit Letter at 22.)9

However, Counsel does not addr ess Ledbetter’s argument that the Board imposed a term of recommitment , i.e., backtime, following his conviction that unlawfully extended his judicially

- imposed sentence by exceeding, in the aggregate, the time he had remaining on his original sentence . I n his Administrative Appeal and Petition for Administrative Review , Ledbetter states
that adding 34 months of backtime onto his original maximum date of November 26, 2015, for a new maximum date of September 8, 2018, violates 37 Pa. Code §§
75.1 and 75.2 ( relating to presumptive ranges) and Davenport

. (C.R. at 118.) I n his Petition for Review, Ledbetter acknowledges that , as a CPV, he can be recommitted to serve the additional part of his term that he would have been compelled to serve in accordance with the presumptive ranges listed in the regulation , citing 37 Pa. Code § 75.2

. 4 (Petition for Review at 2.) Nevertheless , Ledbetter asserts that:
[t]he Board cannot recommit a [CPV] to serve more than the balance of his or her unexpired term, so much the aggregate of time served prior to parole, [and] the backtime imposed does not exceed the maximum sentence first imposed by the trial court. Merritt v. Pennsylvania Board of Probation , . . . 574 A.2d 597 ([Pa.] 1990).

4 Section 75.2 of the Board’s regulations provides, in pertinent part, as follows:
If the Board orders the recommitment of a parolee as a [CPV], the parolee shall be recommitted to serve an additional part of the term which the parolee would have been comp elled to serve had he not been paroled, in accordance with the

. . . presumptive ranges [set forth below .]

37 Pa. Code § 75.2. Various crimes have a presumptive range of backtime, with Driving Under the Influence having a range of 3 months to 6 months an d certain felony violations of The Controlled Substance, Drug, Devi c e and Cosmetic Act, Act of April 14, 1972, P.L. 233, as amended , 35 P.S. §§ 780

- 101

– 780

- 144 , having a range of 24 months to 36 months. 37 Pa. Code § 75.2.10

(Petition for Review ¶ 12.) While Co unsel cites to Davenport and 37 Pa. Code §§
75.1 and 75.2 in his N o

- M erit L etter within his quote of Ledbetter’s issue, he does not do so in the context of what it appears that Ledbetter is arguing: that even if
the backtime imposed is within the presumptive range s , the Board cannot require
him to serve all of the back time if it exceeds, in the aggregate, the time remaining on his original sentence

. Counsel makes no other reference to the regulations and
does not include any discussion regarding p resumptive ranges. Counsel likewise
does not mention Merritt , which addresses the “ agg re g ate” time issue. While this issue may ultimately prove to be without merit, Counsel i s required to address it in
his N o

- M erit L etter to satisfy the requirements of Z erby

. Accordingly, we deny
Co unsel’s Application to Withdraw.

________________________________ R ENÉE COHN JUBELIRER, JudgeIN THE COMMONWEALTH COURT OF PENNSYLVANIA

Calvin Ledbetter , : Petitioner :

: v. : No. 1209 C.D. 2015

: Pennsylvania Board of Probation and : Parole, : Respondent :

O R D E R

NOW , October 24, 2016 , the Application for Leave to Withdraw Appearance filed by Harry J. Cancelmi, Jr., Esquire (Counsel) is hereby DENIED , without prejudice. Counsel is granted 30 days from the date of this Order to either file a renewed application to withdraw, along with an amended no

- merit letter, or
submit a brief on the merits of Calvin Ledbetter’s Petition for Review.

________________________________ RENÉE COHN JUBELIRER, Judge